REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7226 OF 2002

Ittianam & Others ..Appellant(s)

Versus  

Cherichi alias Padmini ..Respondent(s)

WITH

CIVIL APPEAL NO.4432 OF 2003

J U D G M E N T

GANGULY, J.

CIVIL APPEAL NO.7226 OF 2002

1. This appeal is directed against the judgment of  

the Division Bench of the Kerala High Court dated  

6th December, 2000 rendered in Miscellaneous First  

Appeal No. 44 of 1990.

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2. The dispute is over some of properties bequeathed  

by  the  Will  dated  8.5.1967  by  one  Kakkassery  

Ippuru.

3. The material facts on which there is not much  

dispute are that the testator Ippuru’s first wife  

Kunhiri died, leaving behind daughter Molutty and  

son  Vareed  who  died  on  8.1.86.  The  wife  and  

children  of  Vareed,  since  deceased,  are  the  

plaintiffs. The second wife of Ippuru, Kunjila,  

is  the  7th plaintiff.  She  has  two  daughters  

Mariyamma,  the  8th plaintiff  and  the  other  

daughter is Padmini @ Cherichi, the defendant and  

respondent herein.

4. By a sale deed, being Exhibit-B1, dated 2.5.67,  

Kunjila,  the  second  wife  of  Ippuru,  sold  to  

Ippuru half of her rights in respect of item Nos.  

4 to 7 of the properties in the Will bequeathed  

by  Ippuru.  The  other  half  of  the  property  

belonged to her son Vareed. Both the sale deed  

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and the Will were registered on 8.5.1967, Ippuru  

died on 20.7.71.

5. In the Will of Ippuru, seven items of properties  

were bequeathed and out of which items 1 to 3  

were  given  to  one  Molutty,  daughter  of  the  

testator by his first wife. Items 4 to 7 of the  

properties  were  previously  owned  in  equal  

moieties by Vareed and Kunjila, the second wife  

of  Ippuru.  Kunjila,  as  noted  above,  sold  her  

share to Ippuru on 2.5.67 but the sale deed was  

registered on 8.5.67, the same day when the Will  

was registered.

6. After the death of Vareed on 1.8.1986, his wife  

and children appellants, 1 to 5 herein, jointly  

applied  under  Section  278  of  the  Indian  

Succession Act (the Act) for grant of Letters of  

Administration of the Will of the testator.  That  

petition was contested by the Padmini @ Cherichi,  

one  of  the  daughters  of  the  testator’s  second  

wife. Thus the proceeding became contentious and  

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was registered as a suit being O.S. 10 of 1988 in  

the District Court, Thrichur.

7. The  District  Judge  granted  the  letters  of  

administration  in  respect  of  all  the  items  of  

property in the Will. An appeal was taken to the  

High Court whereupon by the impugned judgment the  

High Court upheld the genuineness of the Will but  

modified the grant of letters of administration  

only to items 1 to 3. The High Court declined to  

grant the letters of administration in respect of  

items 4 to 7 and the reasoning given by the High  

Court inter alia was that on the date of the Will  

i.e. 8.5.67 the testator’s title to half of the  

property, namely over item Nos. 4 to 7 was not  

perfected.   It  was  perfected  only  on  the  

registration  of  sale  deed,  which  is  after  the  

execution of the Will, even though the sale deed  

was executed on 2.5.1967. The correctness of the  

finding of the High Court is questioned in this  

appeal.

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8. When  the  appeal  was  taken  up  for  hearing  on  

25.2.2010, the learned counsel for the appellant  

urged that in view of provisions of Section 90 of  

the  Act,  the  judgment  of  the  High  Court  is  

erroneous. But that point was not specifically  

taken  either  before  the  High  Court  or  in  the  

Special  leave  petition.  As  such  the  learned  

counsel  for  the  appellant  prayed  for  leave  to  

file  an  application  for  urging  additional  

grounds.

9. Since the question is purely one of law and is  

arising from the records of the case and can be  

urged  without  raising  any  new  factual  

controversy, this Court granted leave to urge the  

additional grounds. The respondents were granted  

liberty to file its response to the application  

for additional grounds.

10. Pursuant  thereto,  application  for  urging  

additional grounds was filed and the respondent,  

though was given opportunity to file response to  

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those grounds, did not choose to do so. But the  

respondent’s counsel was heard on those grounds  

and he sought to controvert those grounds orally.

11. Admittedly, the parties are Christians and are  

governed by the Act. Along with the application  

for additional grounds a translated copy of the  

Will was also filed.

12. Section 90 of the Act provides:

“90.  Words  describing  subject  refer  to  property  answering  description  at  testator’s  death. –  The  description  contained  in  a  Will  of  property,  the  subject of gift, shall, unless a contray  intention appears by the Will, be deemed  to  refer  to  and  comprise  the  property  answering that description at the death of  the testator.”

13. This  Section  is  based  on  Section  24  of  the  

English Wills Act. Prior to the English Wills Act  

under the common law, testamentary disposition of  

real property spoke from the date of the Will.  

But  the  English  Wills  Act  changed  that  by  a  

statutory presumption to the effect, that unless  

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a contrary intention appears from the recitals of  

the Will, the Will speaks from the date of the  

testator’s death.

14. Section  90  of  the  Act  uses  the  legal  fiction  

“deemed”  and  that  is  used  with  the  specific  

purpose  of  raising  a  presumption  against  

intestacy.  Therefore,  on  an  analysis  of  the  

provisions of Section 90 it is clear that the  

property described in the Will shall be deemed to  

refer to and comprise the property answering that  

description at the death of the testator.

15. In the context of Section 90, the word ‘comprise’  

will  obviously  mean  ‘to  include,  embrace,  to  

comprehend compendiously, to contain, to consist  

of,  to  extend,  cover”  (See  Shorter  Oxford  

Dictionary on Historical Principles, page 386).  

In Webster’s Dictionary the word ‘comprise’ means  

to “include and contain, consist of and embrace”.  

(Webster’s Comprehensive Dictionary Encyclopedic  

Edition, page 269).

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16. Therefore, on a plain reading of the Section, the  

meaning is clear. It is, that in the absence of a  

contrary intention in the Will, the description  

of the properties in the Will shall be deemed to  

refer to and include the property answering that  

description at the death of the testator.

17. It is well known when legislature uses a deeming  

provision to create a legal fiction, it is always  

used  to  achieve  a  purpose.  In  State  of  Travancore-Cochin and others Vs. Shanmugha Vilas  Cashewnut Factory, Quilon, reported in AIR 1953  SC  333,  the  Constitution  Bench  opined,  when  a  

legal fiction is created, one is led to ask at  

once for what purpose it is created (see para 38  

page 343).

18. In  this  case  the  obvious  purpose  is  to  avoid  

intestacy in respect of properties referred to  

and comprised in the Will. Once the purpose is  

ascertained, the Court must give full effect to  

the statutory fiction and the fiction is to be  

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carried to its logical end. In  State of Bombay  Vs. Pandurang Vinayak and others, reported in AIR  1953 SC 244, this Court laid down the aforesaid  

propositions at page 246 of the report. In doing  

so, this Court relied on the famous dictum of  

Lord  Asquith  which  has  virtually  become  locus  

classicus  on  statutory  interpretation  of  

‘deeming’ provisions. Lord Asquith’s formulations  

in East End Dwellings Co. Ld. Vs Finsbury Borough  Council, 1952 AC 109 are:

”If you are bidden to treat an imaginary  state of affairs as real, you must surely,  unless  prohibited  from  doing  so,  also  imagine  as  real  the  consequences  and  incidents which, if the putative state of  affairs  had  in  fact  existed,  must  inevitably have flowed from or accompanied  it……The statute says that you must imagine  a certain state of affairs; it does not  say that having done so, you must cause or  permit your imagination to boggle when it  comes  to  the  inevitable  corollaries  of  that state of affairs.”

19. Going by this test, in our judgment, the High  

Court did not properly appreciate the purport of  

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Section 90. In the context of the Will when it is  

common ground that the Will does not contain any  

contrary intention in respect of the bequest of  

items 4 to 7 of the properties.

20. The  principle  of  Section  90  which,  as  noted  

above,  has  been  taken  from  Section  24  of  the  

English Wills Act has been very lucidly discussed  

in Williams, Law of Wills (3rd Edition). At page  

429  of  the  treaties,  the  learned  author  by  

properly  appreciating  the  deeming  clause  

commented:

“A Will must be construed with reference  to  the  property  comprised  within  it,  to  speak and to take effect as it has been  executed  immediately  before  the  date  of  death  of  the  testator  and  as  if  the  conditions of things to which it refers in  this respect is that existing immediately  before the date of the testator, unless a  contrary intention appears from the Will”.

21. On  general  principles  also  a  Will  speaks  only  

from the date of the death of the testator (See  

AIR 1964 SC 136). In this case assuming but not  

admitting  that  the  testator  had  not  acquired  

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title in respect of half of the property, namely,  

items 4 to 7 of the property bequeathed by him in  

the Will on 8.5.1967, but the sale deed having  

been registered on 8.5.1967, the title reverts  

back to the date of execution of the sale deed on  

2.5.67 under Section 47 of the Registration Act.  

And  the  testator  died  on  20.7.71.   Therefore,  

much before his death, the testator acquired full  

title  over  items  4  to  7  of  the  property.  

Therefore, the High Court was in clear error in  

not appreciating the effect of Section 90 on the  

interpretation of the Will.

22. It is one of the well established principles that  

while construing a Will, the Court should lean  

against any intestacy. This has been put beyond  

any doubt by Lord Esher, Master of Rolls in  Re  Harrison Turner Vs.  Hellard, reported in (1885)  30 Chancery Division 390 wherein learned Master  

of Rolls held:

“……when a testator has executed a will in  solemn form you must assume that he did  not  intend  to  make  it  a  solemn  farce,-  that he did not intend to die intestate  

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when  he  has  gone  through  the  form  of  making a will. You ought, if possible, to  read the will so as to lead to a testacy,  not an intestacy.”

23. The learned counsel for the appellant in support  

of his argument on Section 90 of the Act relied  

on a decision in the case of  Re Fleming’s Will  Trusts Ennion Vs. Hampstead Old People’s Housing  Trust Limited and Another (1974)  3 All ER 323).

24. In that case by a Will made in September 1969,  

the testator bequeathed to the first defendants  

his leasehold house at 54 Narcissus Road when the  

testator  had  his  house  under  a  lease  term  

expiring  on  28th September,  2008  subject  to  

covenants to repair. In April 1971, the testator  

purchased the freehold and that was registered  

with acquisition of title.

25. The leasehold interest was unregistered and the  

testator  died  in  February,  1973.  As  a  sole  

executor of the Will, the plaintiff applied for  

determination of interest that passed on to the  

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first  defendants.  The  residuary  beneficiaries  

under the Will claimed that the first defendants  

was  only  entitled  to  leasehold  interest.  

Repelling  that  contention,  Templeman  J,  while  

delivering the judgment held:

“In  my  judgment,  a  gift  of  property  discloses an intention to give the estate  and  interest  of  the  testator  in  that  property at his death; a mere reference in  the will to the estate and interest held  by the testator at the date of his will is  not  sufficient  to  disclose  a  contrary  intention. It follows that the freehold in  the case passes to the first defendants.  (page 326 Placitum g)

26. The  learned  counsel  for  the  appellants  also  

relied on the decision in the case of Alavandar  Gramani Vs.  Danakoti Ammal and others (AIR 1927  Madras 383). Construing Section 90 of the Act,  

the Division Bench of Madras High Court held:

“...Under  Section  90  of  the  Succession  Act,  XXXIX  of  1925,  there  is  a  presumption,  unless  a  contrary  intention  appears by the Will, that it comprises all  property as at the testator’s death...”

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27. The learned counsel also relied on the decision  

of Bombay High Court in the case of  Abdulsakur  Haji  Rahimtulla  and  others Vs.  Abubakkar  Haji  Abba and others reported in AIR 1930 Bombay 191.  At  page  196  of  the  report,  Bombay  High  Court  

decided:

“...In this connection it is necessary to  remember  certain  general  principles  that  attach to wills. A will speaks from the  date of the death of the deceased. There  might be accretions to or diminutions from  the  property  of  the  testator  as  they  existed at the date of the will. Another  principle to remember in this connection  is that a testator is presumed to dispose  of  all  the  property  that  he  may  die  possessed  of  and  not  only  what  he  possessed at the date of the will...”

28. Reliance was last placed on the decision of the  

Nagpur High Court in the case of Rangoo Ramji Vs.  Harisa and another reported in AIR 1932 Nagpur  163. Explaining the purport of Section 90, the  

High  Court  observed  that  Section  90  is  in  

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accordance with Section 24 of the English Wills  

Act  of  1837.  According  to  such  principle  “the  

Will has to be construed with reference to the  

real estate and personal estate comprised in it  

to speak and to take effect, as if it had been  

executed  immediately  before  the  death  of  the  

testator, and as if the condition of things to  

which it refers in this respect before the death  

of the testator unless contrary intention appears  

by  the  Will”  (page  165  of  the  report).  The  

decision in Rangoo Ramji (supra) was based on the  Madras High Court decision in Gramani (supra).

29. All the decisions discussed above, namely those  

of  English  Court  and  of  the  High  Courts  of  

Madras, Bombay and Nagpur support the contention  

of the appellants.

30. Faced with this argument the learned counsel for  

the respondent wanted to rely on the observation  

of  the  Privy  Council  and  contended  that  this  

leaning towards intestacy is purely a product of  

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British  Jurisprudence  based  on  English  

necessities  and  English  habit  of  thoughts  and  

there would be no justification in taking them as  

guide in the case of Indian Wills.

31. The  aforesaid  observations  were  made  by  Lord  

Moulton while considering the effect of adoption  

in the context of an Indian Will in the case of  

Venkata Narasimha Appa Row Vs. Parthasarthy Appa  Row and another reported in 41 Indian Appeals 51  (at page 71 of the report). These observations  

were by way of obiter dicta by the learned judge  

and were made in 1913 when the Act was not there.

32. Section 90 of the Act is on the principles of  

English Law and this Court in Gnambal Ammal Vs. T  Raju Ayyar and others (AIR 1951 SC 103) speaking  

through Justice B.K. Mukherjea (as His Lordship  

then  was)  clarified  the  position.  This  Court  

considered  the  decision  of  Privy  Council  in  

Venkat  Narasimha (supra)  and  held  that  the  presumption against intestacy may be raised if it  

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is justified from the context of the document or  

the surrounding circumstances and where there is  

ambiguity  about  the  intention  of  the  testator  

(see para 11 page 106 of the report). It is true  

that  presumption  against  intestacy  cannot  be  

raised ignoring the intention in the Will. That  

is  why  Section  90  stipulates  that  the  deeming  

clause  will  operate  only  where  there  is  no  

contrary  intention.  In  this  case  it  is  common  

ground  that  no  contrary  intention  could  be  

discerned in the Will in respect of items 4 to 7.

33. In  subsequent  decisions  while  discussing  

presumption against intestacy this  Court made  

the position further clear in  N. Kasturi Vs.  D.  Ponnammal  and  others,  reported  in  AIR  1961  SC  1302.  Justice  Gajendragadkar,  as  His  Lordship  

then was, speaking for the Bench, opined if two  

constructions are reasonably possible and one of  

them avoids intestacy while the other suggests  

it, “the Court would certainly be justified in  

preferring  that  construction  which  avoids  

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intestacy” and the decision rendered in  Gnambal  Ammal (supra) was relied upon (para 15 page 1307  of the report). Same view was endorsed by this  

Court in Pearey Lal Vs. Rameshwar Das reported in  AIR 1963 SC 1703 wherein Justice Subba Rao, as  

His  Lordship  then  was,  speaking  for  the  Bench  

observed  where  one  of  the  two  reasonable  

constructions would lead to intestacy that should  

be discarded in favour of the construction which  

prevents  the  hiatus  (para  7  page  1706  of  the  

report). The same principle has been quoted with  

approval by this Court in the case of Navneet Lal  alias Rangi Vs. Gokul and others reported in AIR  1976  SC  794.  Speaking  for  the  Bench,  Justice  

Goswami, at para 4 page 797 of the report, quoted  

the aforesaid principle laid down in  Pearey Lal  (supra).

34. Therefore, both the English Courts and this Court  

in construing a Will lean against any presumption  

favouring intestacy in the absence of a manifest  

contrary intention in the Will. The argument on  

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behalf of the learned counsel for the respondent  

has therefore no substance.

35. The learned counsel also relied on the decision  

in the case of Ram Saran Lall and others Vs. Mst.  Domini Kuer and others, reported in AIR 1961 SC  1747.

36. A perusal of the decision in  Ram Saran (supra)  makes  it  clear  that  the  same  was  rendered  on  

totally different facts and against a completely  

different legal background. In Ram Saran (supra),  parties were Hindus, but they were governed by  

the Mohammedan Law of pre-emption as available to  

them by custom. The main question discussed in  

Ram Saran  (supra) was when can the demand for  pre-emption be exercised. The majority opinion of  

the Court, by a 3:2 verdict, decided that such  

demand can be made only after completion of the  

sale. The majority was of the view that a sale is  

complete not only after registration of the sale  

deed under Section 47 of the Registration Act but  

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it is complete only after the registered document  

is copied in the Registration Office, as provided  

under Section 61 of the Registration Act.

37. We fail to appreciate the relevance of the ratio  

in Ram Saran (supra) to the facts of the present  case.

38. Two other judgments cited by the learned counsel  

for the respondent rendered in the case of Hamda  Ammal Vs. Avadiappa Pathar and 3 others reported  in (1991) 1 SCC 715, and that of A. Jithendernath  Vs.  Jubilee Hills Coop. House Building Society  and another reported in (2006) 10 SCC 96, are on  Section 47 of the Registration Act to the effect  

that the title passes retrospectively with effect  

from the date of execution and not from the date  

of  registration.  These  are  accepted  legal  

principles on which there can be no debate but  

they have no application to the facts of this  

case.

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39. For  the  reasons  discussed  above  the  appeal  is  

allowed.  We  are  constrained  to  set  aside  the  

judgment of the High Court and restore that of  

the District Judge. No order as to costs.

CIVIL APPEAL NO.4432 OF 2003

40. For the reasons discussed above and in view of  

the  order  passed  in  Civil  Appeal  No.  7226  of  

2002, this appeal is dismissed.  No order as to  

costs.   

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi July 27, 2010

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